' A case under section 302/364, P.P.C. Was registered against the respondent/ accused Atta Muhammad at Police Station Dullanwala vide F.I.R. No,5 of 1997 for the murder of Muhammad Khalid, a brother of the complainant in an occurrence which took place on 18-1-1997. The report about the occurrence was lodged on 19-1-1997 by the complainant namely Ghulam Rasul.
According to the prosecution version, the accused/respondent visited the house of the complainant and asked Muhammad Khalid deceased to accompany him for bird hunting. The deceased agreed and after taking permission from the complainant went out for bird hunting along with the respondent/ accused and also took away his licenced .12 bore gun for the purpose.
The deceased did not return home during the night upon which the complainant got anxious and he contacted the respondent/accused on the next following day and found him at his house. The complainant was told that he did not know anything about the deceased whereupon the complainant got suspicion and went out in search of his deceased brother. During the search for the deceased, the complainant came across Nazar and Muhammad Amin P.Ws. Who told him that they had seen the deceased in the company of Atta Muhammad respondent/accused at about 'Deegar Wela' on the last preceding day. Both of them were going towards the main supply line of electricity and were carrying guns. The complainant along with the afore named witnesses went to the side of the main supply line of electricity and found the dead body of the deceased in a sugarcane crop near its western watercourse. The gun of the deceased was lying by his side and a gunshot injury was found on the right side of his head. The complainant, thereupon, lodged the complaint with the police vide his statement (Exh.PB) in which he expressed his suspicion against the respondent/accused for killing his deceased brother.
2. The police investigation found the respondent/accused guilty and he was sent up to face his trial in the Sessions Court. The case was heard and decided by Mr. Faiz Rabbani Khan Sial, learned Sessions Judge, Bhakkar, who vide his impugned judgment, dated 2-7-1998 acquitted the respondent/ accused of the charge of murder.
3. The complainant has filed this appeal against the acquittal of the accused under section 417(2- A), Cr.P.C. Inter alia contending that the impugned judgment was bad in the eyes of law as the learned Sessions Judge ignored the credibility of the last seen evidence rendered by Wajtakkar P.Ws. Which was supported by the recovery of gun, the medical evidence and the motive. The cumulative effect of the evidence aforementioned allegedly led to an irresistible conclusion that there was no other hypothesis but that the respondent/accused was guilty of murder of the deceased. By ignoring the credible, consistent and unimpeachable type of evidence comprising of motive, last seen evidence, recovery and medical evidence, the learned trial Court allegedly committed gross illegality in acquitting the respondent/ accused.
4. We have heard the learned counsel for the appellant on the foregoing points have also carefully gone through the record of the learned trial Court. Admittedly, there is no eye-witness in the case to show that the murder was committed by the respondent/ accused. The last seen Wajtakkar evidence comprising of Nazar (P.W.6), Ameen (P.W.7) and Ameer Ahmad (P.W.9) has been critically analysed and discussed by the learned trial Court and was consequently discarded on the ground that. Nazar (P.W.6) and Muhammad Ameen (P.W.7) were closely related with the deceased and hence, were interested witnesses. The other witness namely Ameer Ahmad (P.W.9) appeared before the Police six days after the occurrence and made statement that he had seen Alta Muhammad respondent/accused running away with .12 bore gun from sugarcane field towards his house on the day of occurrence. This witness was also held to be an interested witness as he had admitted that he was tenant of one Habib who was the real uncle of the deceased Khalid. It is, thus, obvious that the last seen evidence was disbelieved by the learned trial Court by advancing cogent reasons. Even otherwise, it is well-understood that such type of evidence is very weak and cannot be implicitly relied upon until and unless it is corroborated by an evidence of qualitative nature, coming from impeach-able source. In the instant case, no such corroboration is available.
Similarly, the recovery of gun is of no use because it was the licenced gun of the deceased who had fetched it from home for bird hunting. Its chamber contained an empty showing that a fire was made from the gun but the same was never sent to the Forensic Expert or the Finger Bureau Expert after taking the finger prints from the gun concerned. This lapse would in no way connect the gun with the crime or provide any corroborative value to the last seen evidence. The medical evidence was also of no value because a single injury in the head from the firearm would not show that it was a fire, made by the respondent/accused in the absence of any other linking factor. The story of motive is also not only weak but in fact no motive was shown in the F.I.R. Except that a suspicion was raised against the respondent/accused for committing the murder of the deceased.
Subsequently, the complainant while appearing as"P.W.8 made the story of motive by stating that the accused/respondent suspected the deceased for having some illicit relations with a lady of his family. However, the name of the lady or other particulars regarding illicit liaison were never brought on record. As such, the motive story was also correctly discarded by the learned trial Court.
5. It is clear from the above analysis that the learned trial Court had discussed the evidence of the prosecution in detail and had discarded the same for cogent and convincing reasons.
6. In the last, learned counsel for the appellant contended that the leaned trial Court failed to appreciate that the offence of Qatl-iKhata was proved and as such, the respondent/accused was liable to be punished under section 319, P.P.C.
7. We have considered this aspect of the case. It is not possible to agree with the learned counsel for the appellant because the prosecution had failed to prove that the respondent/accused had actually accompanied the deceased for bird hunting as stated in the F.I.R. As such, the presence of the respondent/accused with the deceased was not proved at the time of occurrence. The respondent/accused also denied in his statement under section 342, Cr.P.C. That on the unfortunate day, he had ever accompanied the deceased. It is also on the record that the deceased had friendly relationship with the respondent/accused and they used to go together for bird hunting for the last two years preceding the unfortunate occurrence. This also shows that the motive, relied upon during the trial that the accused/respondent suspected of the deceased for keeping illicit relations with a lady of his family was not only unfounded but also mischievous. In fact there was no motive shown in the F.I.R. Except that a suspicion was expressed by the complainant against the respondent/accused for killing the deceased. Since the presence of the respondent/accused with the deceased at the unfortunate time was not established beyond any reasonable doubt from the evidence on the record, therefore, the commission of Qatl-i-Khata by him would not only be improbably but also gravely doubtful.
8. We may point out that in the acquittal appeal, interference is made only when it appears that there had been gross misreading of evidence on the record leading to miscarriage of justice. In the instant case, there is no such misreading of evidence nor there is miscarriage of justice so as to call for interference with the impugned judgment. The appeal is accordingly, dismissed.